Italian Law, Extradition And Amanda Knox

Guests

Olga Khazan, global editor, The AtlanticChris Blakesley, law professor, University of Nevada at Las Vegas

The Italian Supreme Court ordered that Amanda Knox be retried for the 2007 murder of her British roommate Meredith Kercher. This decision overturned her acquittal from 2011. If she's found guilty this time around, she could face extradition.

No, you are not crazy. It is deja vu all over again. The Amanda Knox case that captured nonstop media attention in 2011 is back on the docket. You'll remember Knox was originally convicted of the murder of her roommate in Italy, then after four years in prison acquitted and released to go home to the United States. Yesterday the Italian supreme court ordered yet another new trial for Knox, which raises at least two very large questions: How can she face trial for a third time and what happens if Italy demands extradition? We'll take those points one at a time. We begin with Olga Khazan. She is a global online editor at The Atlantic, where she wrote a piece on the Italian justice system and joins us from a studio there. And Olga Khazan, thanks very much for your time today.

OLGA KHAZAN: Thanks so much for having me.

CONAN: Well, the first question any American would have is about double jeopardy. In this country, if you've been acquitted, you can't be tried on the same charges again.

KHAZAN: Yeah. There are actually sort of some legal questions as to whether this is actually double jeopardy that she's going to be going through, since basically they're overturning a ruling that was made by an appellate court and retrying the case in another appellate court. And in some cases the U.S. does actually permit retrials of people who have had their convictions reversed on procedural grounds. There's a lawyer quoted in USA Today as saying that the case is not likely to be considered a case of double jeopardy by U.S. courts because Knox wasn't acquitted before a jury.

CONAN: So this then gets confusing because in Italy, it seems no case is ever settled.

KHAZAN: Yeah, exactly. One of the main differences between the two court systems is that appeals are very common in Italy. The initial trial tends to sort of favor the prosecution, and the appeal that follows usually results in a reduced sentence. So the court of cassation actually hears a ton of cases each year, and there's a huge judicial backlog, which might explain some of the delays that we're seeing in this case. And it actually sees 80,000 new cases each year, which is 100 times more than in France or Germany.

CONAN: And it is the - in fact, some of the people who felt aggrieved by the acquittal verdict who said, wait a minute, the family of the young woman who was murdered among them, who said, this stinks. Take another look at this.

KHAZAN: Yeah, exactly. So the acquittal has been annulled, and this is a question over whether the previous acquittal was correct. There were some accusations that there were errors made by the appellate judge and some allegations of corruption in the team of experts who nullified the forensic evidence. And there was some talk that the experts were a little bit too close to Sollecito's family, one of the defendants, and that they were only given a few items of forensic evidence to review rather than the entire body.

CONAN: And it also looks like this investigation was bungled from the start, including the police force who first went to investigate the crime scene.

KHAZAN: Yeah. Actually, that was one of the most surprising things about this case, is that the entire investigation seemed sort of flawed from the very start. They had sort of an amateurish police force gathering the evidence at the very beginning and the prosecutor on the case was sort of a hybrid of a detective and a district attorney, which you might read about in the Rolling Stone article that I mention in my story.

CONAN: Mm-hmm.

KHAZAN: So the police investigator actually had a lot of incentive to look for evidence that supported the prosecutor and the confession was also not recorded and that was the main evidence used against her. And then on top of that, in the trial, the jurors weren't sequestered and the prosecution failed to establish a motive.

CONAN: Failed to establish a motive?

KHAZAN: Yeah. That was actually one of the - part of the reason why the conviction was overturned was because of how flawed the entire trial was.

CONAN: And just said - as I remember the case - reading about it in your piece today was the - the prosecutor said, well, you know, there's stuff that happens and we can't explain it.

KHAZAN: Yeah, exactly. It does seem like also the jury was sort of not totally professional throughout the case. It seemed like they were kind of calling out and not paying attention during parts. So it looks like - but it looks like a lot of cases are actually taken through several layers of appeal. So I wouldn't say that it's unusual that this is being appealed again. It may actually be appealed another time after this. That's not unusual for Italy.

CONAN: So there could be a fourth appeal.

KHAZAN: Yes, exactly. It could be that they - this could be taken back to an even higher court. So we may not actually hear the end of it for another year or two.

CONAN: Which raises another - a number of - we keep hearing, for example, of Silvio Berlusconi, the former and, who knows, perhaps future prime minister of Italy, who's convicted in cases, and they're never seemingly decided.

KHAZAN: Yeah, exactly. It looks like the average time to settle a civil case in Italy - according to Reuters - is actually more than seven years, and for a criminal case is five. And there's - I mean, this has been the subject of a lot of investigations. And I guess - actually, U.S. Chief Justice John Roberts said he couldn't believe how many cases were brought before Italy's Court of Cassation each year. That's from a Reuters article that was sort of looking at how flawed the judiciary is there, in the wake of the Berlusconi trial.

CONAN: And given all of these - well, one of the writers you cite in your story called it carnival-esque, the justice system in Italy. Is there any cry for reform?

KHAZAN: I think there is, but I actually think the current system, if I remember correctly, is actually the result of a previous set of reforms. And I think the concern is that they just want to make sure that everyone gets a trial to the fullest extent of the law, and that they're able to see their appeals through to the fullest extent. And so I think that, you know, if this hadn't been dragging on and if they had just let it stand, I feel like the victim's family in the Knox case would feel like, you know, that there were some problems in the trial and that they still deserve to see, you know, justice served.

CONAN: So what is the next step there in Italy now?

KHAZAN: So, essentially, it looks like Amanda won't have to return to Italy for the trial. It looks like she's going to be tried in absentia. And so, basically, her lawyers are likely going to appear on her behalf, and then the U.S., if her conviction is upheld, then the U.S. would have to then fight extraditing her back to Italy to serve the remainder of her sentence, which I believe was 26 years.

CONAN: She served four. We'll get onto that question of extradition next. Olga Khazan, thank you very much for your time.

KHAZAN: Thank you so much.

CONAN: Olga Khazan is the global online editor at The Atlantic, and she spoke to us from a studio there. To join us now to talk about extradition is Chris Blakesley, law professor at the University of Nevada, Las Vegas, joining us from his home in Las Vegas. Good of you to be with us today.

CHRIS BLAKESLEY: Thank you, Neal. Glad to be here.

CONAN: So - and tried in absentia. Well, we heard about the questions about double jeopardy. That wouldn't fly here. Tried in absentia, that's also something that wouldn't necessarily fly here.

BLAKESLEY: Right, not necessarily. Although if she has the opportunity to go back and doesn't do so, that could raise some issues about whether she waived it. On the other hand, it's sort of anathema to us. In our system, we don't generally have it. Although when we entered into the extradition treaty, we accepted their system.

CONAN: So - and their system does include these kinds of cases. But why in the world would Amanda Knox ever go back to Perugia?

BLAKESLEY: Oh, I don't - I mean, if I were advising her, I wouldn't ever - I wouldn't do it, unless compelled to do so. So her attorneys being there will be her representatives to try to make it as fair as possible. So I think that's the way it sounds like she's going to go about it, and probably should.

CONAN: If, though, her conviction is then - if the case is reversed again and she's reconvicted, the United States would take it very poorly if a convicted murderer were not to be extradited here from Italy.

BLAKESLEY: Exactly. And we have a duty to extradite. Under the treaty, we agreed to do such things.

CONAN: So the United States government would then presumably try to - if she was still here - arrest Amanda Knox and send her on to Italy.

BLAKESLEY: Right. What would happen is they - Italy would make a provisional arrest request, requesting that she be delivered to serve the sentence, to finalize it all. And then, her attorneys here would try to block that extradition, and that's possible. I mean, it's - I think there are still some lurking possible issues relating to double jeopardy. I don't think it's a closed issue, notwithstanding the language in the treaty.

CONAN: So, in other words, her lawyers could argue before an American judge, wait a minute. This amounts to double jeopardy, and therefore, we shouldn't agree to it.

BLAKESLEY: Right. I mean, it seems to me that due process - which is also in the Fifth Amendment, along with the double jeopardy clause - double jeopardy and due process kind of fold in together. And so there can be arguments about whether that process over in Italy, under these circumstances, satisfies our double jeopardy clause.

CONAN: Now, we're talking about process and procedure. Are those the only things that might be available for - in an extradition hearing? Could you go back and look at the evidence?

BLAKESLEY: Well, all that's necessary for an extradition to occur is enough evidence for probable cause. That's if there's simply an indictment or its equivalent from over there. After a conviction, then the conviction itself is sufficient.

CONAN: So no arguments about they mishandled the DNA evidence, or this witness was compromised.

BLAKESLEY: No. I mean, that wouldn't happen normally in the extradition hearing.

CONAN: And would any precedent be set in this case?

BLAKESLEY: Well, possibly. I mean, if it ended up going to an attempt to block the extradition, and a refusal of that, and then an attempt at habeas corpus after that, there could be several stages of appeal or of habeas corpus here in the U.S., in addition to whatever would happen afterwards in Italy.

CONAN: We'll get to that in just a minute. We're talking with Chris Blakesley. And Chris is a law professor at the University of Nevada at Las Vegas. You're listening to TALK OF THE NATION, from NPR News. All right, take us through that a little more carefully. Who would be filing a writ of habeas corpus, a demand to produce the body?

BLAKESLEY: Right. Well, the - her attorneys in the United States, if it were - if their attempt to block extradition failed, then they would file a writ of habeas corpus to argue that it was inappropriate to take her body and send it back over to Italy for prosecution, and that would raise all of the potential issue of due process, et cetera. Then if that were refused, there could be an appeal of that, and so on.

CONAN: It sounds like this is not going to be decided quickly, even if the Italian courts decide quickly.

BLAKESLEY: I think that's right. I don't think either set of courts will decide it so quickly.

CONAN: There is also a question - and again, this is not something any lawyer, any representative could conceivably recommend - but might Amanda Knox take up, I don't know, farming in Uruguay?

BLAKESLEY: I doubt it. I mean, it doesn't seem like she should. If she goes to a place that has relations - legal relations, extradition treaty with Italy, she risks their sending her back to Italy for the sentence.

CONAN: Now, there have been several cases in Italy where they have asked us to produce some people that they would like to try, and these are officers of the Central Intelligence Agency involved in rendition cases, where they rounded up suspects in Italy and had them sent off to various places, allegedly to be tortured. The United States has declined to provide those people.

BLAKESLEY: Right. No, exactly. And that sort of refusal to extradite happens all the time. So if you - let's suppose that, in the end, by whatever means, either the magistrate or somewhere along the line, the U.S. refuses to extradite, Italy's mechanism for protesting that would be to do just that, send a diplomatic note of protest to the U.S. Department of State, saying that we violated the treaty. That would be pretty much the extent of their capacity to challenge, unless they said: and besides, no more extraditions with us.

CONAN: So, a quid pro quo: If you're not going to send us our prisoners, we're not going to send you ours.

BLAKESLEY: The treaty's defunct. We're finished. Yeah.

CONAN: And then there is the other complication: Italy, of course, is a member of the European Union.

BLAKESLEY: Right.

CONAN: And does that come into it at all?

BLAKESLEY: It sure does. They're - the European Union has the European Court of Human Rights, which is involved in protecting rights, including due process-type rights. So there's the possibility of challenges even in that body, if it ever got to that stage over in Europe, from Italy to the Court of Human Rights, possibly.

CONAN: It sounds like this might be one of the more interesting cases in recent memory.

BLAKESLEY: It's fascinating and troublesome, and so sad for the family of the victim. I mean, it's always tragic and fascinating - a hard thing to teach, very interesting to teach.

CONAN: Because there are so many interests on so many sides, here.

BLAKESLEY: So many interests, and almost always, in my arena, so tragic.

CONAN: Why almost always?

BLAKESLEY: Well, just in criminal law, such bad things happen. And in international criminal law, even worse things tend to happen, at least in the arenas that I teach about and write about.

CONAN: I see. They're not going to go to all this fuss unless something pretty drastic is involved.

BLAKESLEY: Right. And the issues, the ones that are poignant and important tend to be from cases that are really troublesome and sad.

CONAN: There are any number of cases involving extradition where one parent took a - spirited away one of the children in a child custody case. The kind of thing you're talking about?

BLAKESLEY: Right. That happens. There could be parental abduction. There's a separate treaty for that, but not all countries are parties to it. Child abuse, egregious murders - in the extradition arena, all of that's a serious problem and difficulty.

CONAN: Well, Chris Blakesley, thanks very much for your expertise. We appreciate it.

BLAKESLEY: OK. You're welcome.

CONAN: Chris Blakeley is a law professor at the University of Nevada, Las Vegas. He joined us by phone from his home there in Las Vegas. Tomorrow, NPR's Nina Totenberg will join us to wrap up the Supreme Court's week and look ahead at what's next in the gay marriage discussion. Join us for that. I'm Neal Conan. It's the TALK OF THE NATION, from NPR News.

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